The opinion of the court was delivered by: Wm. R. Wilson, Jr. United States District Judge
Pending is Petitioner's Motion to Vacate under 28 U.S.C. § 2255 (Doc. No. 103). The Prosecution has responded,*fn1 and Petitioner replied.*fn2 Petitioner also has filed a Motion to Conduct Discovery (Doc. No. 110) and a Motion to Strike (Doc. No. 111).
Petitioner was charged in a two-count indictment with wire fraud, a violation of 18 U.S.C. § 1343, and committing an offense while on pre-trial release in another case, a violation of 18 U.S.C. § 3147(1). On November 9, 2004, Petitioner pled guilty to Count One of the indictment, and, on December 8, 2005, she was sentenced to 37 months in prison and directed to pay $25,000 in restitution. Petitioner appealed, and on August 22, 2006, the Eighth Circuit Court of Appeals affirmed the order and judgment of this Court.*fn3
Petitioner asserts that she is entitled to habeas relief based on the following claims: (1) vindictive and retaliatory prosecution; (2) the indictment failed to state a criminal offense in violation of the Fifth and Sixth Amendments; (3) the trial court lacked jurisdiction; (4) the plea agreement was invalid; (5) the plea was coerced and involuntary; (6) the sentence was based on non-existent guidelines; (7) constructive amendment of indictment; (8) breach of plea agreement; (9) ineffective assistance of counsel / denial of conflict free counsel; and (10) misconduct by the prosecutors.
A. Vindictive and Retaliatory Prosecution
Petitioner asserts that this case constituted vindictive and retaliatory prosecution. Specifically, Petitioner contends two U.S. Attorneys "instituted this case as a means to retaliate against [her] for filing a civil case and administrative complaints against them. . . ."*fn4 She points out that, on September 16, 2004, she filed a civil action, naming over forty defendants --including the U.S. Attorney for the Eastern District of Arkansas and four Assistant U.S. Attorneys*fn5 -- and on October 6, 2004, the indictment was filed in this case. The indictment charged Petitioner with fraudulent use of a credit card in October, 2003, while Petitioner was out on bond awaiting trial in another case.*fn6
Vindictive prosecution claims require a petitioner to "show that the prosecution was brought in order to punish the defendant for the exercise of a legal right. The burden is a heavy one, and we recognize the broad discretion given to prosecutors in enforcing criminal statutes."*fn7
"To establish a prima facie case of prosecutorial vindictiveness, a defendant must show either direct evidence of actual vindictiveness or facts that warrant an appearance of such."*fn8 "A presumption [of vindictiveness] does not arise just because action detrimental to defendant was taken after the exercise of defendants legal rights . . . ."*fn9
Petitioner has not met her burden. The fact that Petitioner filed a civil case that named several Assistant United States Attorneys a few weeks before being indicted in this case seems to be pure coincidence -- especially in light of the fact that the civil case appeared to be frivolous;*fn10 the prosecutor defendants likely were entitled to immunity; and the prosecutor who signed this indictment was not a defendant in the civil case. I also note that, according to Petitioner's lawyer's unrebutted testimony, it was Petitioner, not the Prosecution, who initiated the idea that her civil case be dropped as part of the plea negotiations.*fn11 Finally, during the plea hearing, I asked Petitioner "Have any promises been made to you other than the promises in that written plea agreement to get you to plead guilty?" and have "[a]ny threats been made against you to get you to plead guilty?" To both questions, Petitioner responded "No, sir."*fn12
Because Petitioner has failed to present any objective evidence of a vindictive motive or facts that would create an appearance of vindictiveness, this claim is DENIED.
B. The Indictment Failed to State a Criminal Offense
Petitioner contends that, although the indictment charged her with violating the wire fraud statute, "the elements of a wire fraud offense were not alleged in the indictment."*fn13
"An indictment is sufficient if it: (1) contains the elements of the charged offense and fairly informs the defendant of the charge against which he must defend; and (2) enables him to plead double jeopardy as a bar to further prosecution."*fn14 "It is not necessary that the indictment use the precise language used in the statute" so long as it can be fairly read to allege "an offense recognized by the law."*fn15
Count 1 charged Petitioner with wire fraud under 18 U.S.C. § 1343. The four essential elements of this offense are: (1) the defendant voluntarily and intentionally devised or participated in a scheme to defraud another out of money by means of material false representations or promises; (2) the defendant did so with intent to defraud; (3) it was reasonably foreseeable that interstate wire communication would be used; (4) and interstate wire ...